Linda Maree Rivette v Vision Australia Limited
[2023] FWCFB 67
•30 MARCH 2023
| [2023] FWCFB 67 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Linda Maree Rivette
v
Vision Australia Limited
(C2023/421)
| VICE PRESIDENT CATANZARITI | SYDNEY, 30 MARCH 2023 |
Appeal against decision [2023] FWC 47 of Deputy President Bell at Melbourne on 6 January 2023 in matter number U2022/8272 – permission to appeal refused.
Background
Ms Linda Maree Rivette (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act), for which permission to appeal is required, against a decision of Deputy President Bell issued on 6 January 2023 (the Decision).[1] The Decision concerned an application brought by the Appellant for an unfair dismissal remedy from her employment with Vision Australia Limited (the Respondent) under s.394 of the Act.
In the Decision, the Deputy President found that the Respondent had a valid reason for dismissing the Appellant, being that she was in breach of a workplace vaccination mandate, and that the dismissal was not harsh, unjust or unreasonable. By separate Order,[2] the Deputy President dismissed the Appellant’s application for an unfair dismissal remedy.
This matter was listed for permission to appeal only. On 30 January 2023, directions were set for the filing of material by the Appellant and the matter was listed for hearing on 6 March 2023. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and did not do so. The Appellant filed written submissions, and on 2 March 2023, the Appellant consented for the matter to be determined on the papers without the need for a formal hearing or oral submissions, and the listing was subsequently vacated. On 5 March 2023, the Appellant filed further written submissions. We are satisfied this matter can be adequately determined based on the materials before the Commission, pursuant to s.607(1) of the Act.
For the reasons that follow, permission to appeal is refused.
The Decision under appeal
The Respondent is a national, not-for-profit organisation that provides in-person disability and healthcare services to blind and low-vision clients. The Appellant was employed by the Respondent within their Information Systems Group (ISG) team. In around 2019, the Appellant moved into a newly created role of ‘IT Customer Support Specialist – Salesforce’ following an organisational review of the ISG team. The term ‘Salesforce’ is in reference to a customer relationship management software which was used by the Respondent to maintain client records and for service billing. The Appellant reported to Mr Seneka Mapa, the Manager of IT Operations for the Respondent.
The Respondent’s head office is in Kooyong, Victoria. The Deputy President found at [13] of the Decision that an implied term of the Appellant’s employment contract was to attend work at the Kooyong site. However, following the impact of COVID-19, the Appellant worked remotely from home and did not attend the Respondent’s offices in compliance with various public health orders issued by the Victorian government from April 2020 onwards. Such restrictions began easing in October 2021, though with a continued and broadly cast legal requirement that unvaccinated workers were prohibited from attending their place of work.
Moreover, although public health orders began to be lifted for several sectors of the Victorian workforce in about July 2022, the position was different in relation to the Appellant’s employment. Particularly, the Pandemic (Workplace) Order 2022 (No. 10) (Order 10) was in force at the time of the Appellant’s dismissal. Order 10 prohibited an employer operating a “healthcare facility” from allowing an employee to work outside of their ordinary place of residence unless they were “fully vaccinated (boosted)”. The Deputy President found at [23] of the Decision that the Appellant was not “fully vaccinated (boosted)”, and at [24] of the Decision that Order 10 applied to the Respondent and the Appellant’s employment.
Mr Mapa gave evidence, which the Deputy President accepted at [29], that an essential requirement of the Appellant’s employment was for her to travel to all the Respondent’s offices to provide in-person support for usage of the Salesforce software. Mr Mapa also noted that the Appellant had to be on-site at the Kooyong office to problem-solve with other team members from time to time, handle walk-in support requests, attend team meetings, engage with team-building activities and development sessions, and to receive onsite training.
There were a number of challenges to Mr Mapa’s evidence by the Appellant which the Deputy President considered at [33] – [42]. The Deputy President accepted that although the Appellant was required to travel to other offices, such occurrences were rare, and she mostly worked at the Kooyong site. Further, the Deputy President noted that whilst walk-in support requests were discouraged by the Respondent, they still occurred regularly. Moreover, despite the fact that the Appellant’s replacement was located in Queensland, the Deputy President found that this did not lead to a conclusion that handling walk-in support requests was not an essential element of the Appellant’s work, since the Respondent was nevertheless upskilling employees at the Kooyong site to cover such tasks.
Leading up to the Appellant’s dismissal on 21 July 2022, the Respondent made a series of return-to-work requests to the Appellant. The significant instances of correspondence are summarised briefly below:
On 2 December 2021, the Respondent sent the Appellant an email extending a temporary remote work arrangement for her until 31 January 2022. The email stated that if the Appellant remained unvaccinated, she would not be fulfilling the inherent requirement of her role “to be onsite to engage with the team and complete training as required.”
On 17 December 2021, the Respondent sent the Appellant a letter titled “Letter of Notification” regarding the requirement to work onsite and to be vaccinated, foreshadowing possible termination by 31 January 2022 if the Appellant was not vaccinated or exempt.
Throughout January and February 2022, the Appellant attended various meetings with the Respondent which primarily concerned requests by the Appellant to pursue a medical exemption or potentially receive the Novavax vaccine. On 24 February 2022, the Appellant signed a document committing to obtain the Novavax vaccine. In this period, the Appellant’s remote work arrangement was extended until 31 March 2022.
On 29 March 2022, the Appellant and Respondent had a meeting where the Respondent indicated that further extensions of the remote working arrangement would not be provided, and that she would be given 5 weeks’ notice of termination.
On 31 March 2022, the Appellant’s remote work arrangement was extended until 5 May 2022, equating to the 5-week notice period.
Despite this, it was subsequently agreed between the Appellant and Respondent that the Appellant would take combined annual and long service leave from 5 May 2022 to 14 July 2022.
On 12 July 2022, the Respondent wrote to the Appellant to inform her that she remained unable to perform the inherent requirements of her role onsite and gave the Appellant an additional week of paid leave to reconsider whether she would obtain a vaccination or valid medical exemption.
It was not in dispute between the parties that the Appellant was protected from unfair dismissal, that she had been dismissed on 21 July 2022, and that she had made an application to the Commission within the 21-day period as required in s.394(2).
Having set out the background and factual findings, the Deputy President subsequently turned to a consideration of each of the factors under s.387 of the Act as to whether the Appellant’s dismissal was harsh, unjust or unreasonable.
In his discussion of whether there was a valid reason for the dismissal related to the Appellant’s capacity or conduct under s.387(a) of the Act, the Deputy President first set out the relevantly applicable legal principles. While the Deputy President acknowledged that the term “inherent requirement” does not explicitly appear in s.387, he recognised that it was often used as a shorthand way to identify circumstances relevant to an assessment of s.387(a). The Deputy President observed that, when having regard to the inherent requirements of an employee’s work, attention must be given to their substantive role and not a modified or altered form of their role. The Deputy President also noted that, in the context of the COVID-19 pandemic and its consequences, there have been numerous recent cases before the Commission where the requirement to perform work on-site at a specific location has been held to be an inherent requirement of an employee’s role.
The Deputy President subsequently found at [72] – [75] that there were three independent bases as to why an inherent requirement of the Appellant’s role required her to attend work on-site from time to time:
That the Appellant had to assist with walk-in requests.
That it was an express requirement of the Appellant’s role that she could travel to other sites to provide in-person support in respect of the Salesforce software.
That the Appellant had to be present for activities such as team building, development sessions and onsite training.
The Deputy President also considered it relevant that, prior to the impact of the COVID-19 pandemic, the Appellant had worked onsite. Though the Appellant performed many but not all of her tasks remotely for a period of two years, the Deputy President did not consider that this negated onsite work as an inherent requirement of the Appellant’s role, given it was extensively modified to accommodate the circumstances of lockdown. The Deputy President therefore concluded at [83] that there was a valid reason for the Appellant’s dismissal.
Turning to whether the Appellant had been notified of the valid reason, the factor under s.387(b), the Deputy President was satisfied at [87] that the Appellant was “notified of the reason prior to the decision to dismiss being made, and in explicit and plain and clear terms.” The Deputy President was also satisfied at [90] that the Appellant was given an opportunity to respond to the reason for her dismissal relating to her conduct or capacity and did so, for the purposes of assessing the factor under s.387(c).
The Deputy President also considered that several of the factors listed in s.387 were neutral in his weighing up. The Deputy President did not find there was any refusal or unreasonable refusal of a support person to the Appellant at [92], relevant to s.387(d). The dismissal did not concern unsatisfactory performance, and as such the factor in s.387(e) is not relevant. The Deputy President also did not consider that the size of the Respondent’s enterprise or their amount of human resource management specialists and expertise had any impact on the procedures followed in effecting the dismissal of the Appellant, pursuant to s.387(f) and (g) respectively.
Finally, in accounting for other relevant matters under s.387(h), the Deputy President also considered that the fact that the Appellant was a long-term employee of the Respondent, having worked with its corporate predecessors since 1995, as well as the fact that the Appellant was over 70 years old, were factors weighing in her favour.
In weighing up each of the above-mentioned factors, the Deputy President ultimately reached the conclusion that:
“[103] There was an inherent requirement that some of the Applicant’s work was to be performed in-person at her workplace. By reason of the operation of the Victoria public health orders, as variously applied up to and including Order No. 10, which the Respondent was required to comply with, she was unable to meet (and it was tolerably clear she would not be meeting) the inherent requirements of her role.
[104] Those matters gave the Respondent a valid reason to dismiss the Applicant. I consider that the Respondent afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end. I do not consider there are other matters that, taken individually or together with the other factors, would render the dismissal unfair.
[105] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.”
Grounds of appeal
Across her Form F7 and extensive written submissions, which total over 200 pages, the Appellant broadly advances six grounds of appeal which we summarise concisely below.
Ground 1
The Appellant submits that she was denied procedural fairness since she was not able to attend the hearing or give oral evidence as a witness. This is because the Deputy President refused to adjourn the hearing for two additional months, despite the Appellant tendering medical documents which certified that she was medically unfit to attend any court proceedings. The Appellant further submits that her inability to attend the hearing impacted the outcome of the decision, insofar as evidence led by witnesses called by the Respondent, which the Appellant contends was factually erroneous, was accepted by the Deputy President.
Ground 2
The Appellant submits that the Deputy President erred in allowing the Respondent to be legally represented in the matter below, especially as the Appellant was being represented by her legally untrained brother. She contends that this disparity in legal representation created a substantial procedural disadvantage that could not be justified by a small increase in the efficiency of the proceedings.
Ground 3
The Appellant further submits that the Deputy President erred by not allowing her to call Simone Blumberg as a witness. The Appellant asserts that Ms Blumberg, who is the Chief People Officer of the Respondent, was a critical witness as she was responsible for “orchestrating” the dismissal process of the Appellant. The Appellant also submits that calling Ms Blumberg as a witness would have allowed her to illuminate the inaccuracies within the written material filed by the Respondent in cross-examination.
Ground 4
The Appellant submits that the Deputy President did not sufficiently consider the fact that the Appellant, as a long-standing employee, had submitted extensive medical evidence to the Respondent about her underlying health conditions and vulnerability prior to her dismissal. In so doing, the Appellant asserts that the Deputy President erred by not finding that her dismissal was unreasonable given her health circumstances, and the fact that the Appellant merely required more time to seek medical advice about her likelihood of an adverse reaction to a COVID vaccine.
Ground 5
The Appellant submits that the Deputy President erred in finding that inherent requirements of her job included travel to the Respondent’s offices in other locations around Australia, and provide staff support and service in person. The Appellant contends that these incorrect findings led the Deputy President to wrongly conclude that the Respondent had a valid reason for relating to the Appellant’s capacity or conduct pursuant to s.387(a) of the Act.
Ground 6
Finally, the Appellant submits that since the Appellant did not attend the hearing, she was not able to clarify nor dispel many of the factual inaccuracies in the witness testimony of Mr Seneka Mapa, whose evidence played an important role in the Deputy President’s assessment of the factor under s.387(a) of the Act.
Principles on appeal
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal. An appeal may only be made with the permission of the Commission.
Section 400 of the FW Act applies to this appeal. It provides that:
(1)Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2)Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error,[5] or a preference for a different result.[6] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[7]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[8] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[9] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
Grounds 1 & 6
Since Grounds 1 & 6 of the Appellant’s case contain significant overlap with one another, they will be dealt with together below. In both Grounds 1 & 6, the Appellant submits that the Decision manifests procedural unfairness, since the Deputy President refused to adjourn the hearing for two additional months despite the Appellant having medical evidence certifying her inability to attend court. In both grounds, the Appellant further submits that her absence from the hearing on 12 December 2022 resulted in evidence being led by the Respondent’s witnesses that was factually inaccurate and went unchallenged, which was ultimately accepted by the Deputy President. We have reviewed the Appellant’s extensive written submissions under Grounds 1 & 6, as well as the medical report tendered, and we do not consider that either ground of appeal discloses an arguable case of appealable error.
The Appellant submits that the Deputy President overrode the advice of medical experts by refusing to adjourn the matter further. We disagree. We note that, whilst the hearing was initially listed for 11 November 2022, the Deputy President had already re-listed it for 12 December 2022 after having regard to the medical evidence tendered by the Appellant.[10] Moreover, additional time was granted to the Appellant to file her desired written material, including a personal witness statement though she did not ultimately do so.[11] Moreover, the Deputy President was open to programming additional breaks into the hearing to allow the Appellant’s brother, who would be representing her, to confer with her.[12] These allowances demonstrate that the Deputy President genuinely considered the medical circumstances of the Appellant and did not disregard them.
Furthermore, turning to the medical certificate itself, we agree with the Deputy President’s interpretation that whilst the certificate states that the Appellant was not able to be present in court, it did not preclude the Appellant from reviewing evidence or drafting a witness statement outside of it.[13] The Deputy President also asked the Appellant for further medical evidence to justify the grant of an adjournment,[14] but this was not provided by the date of the hearing. In light of the fact that the Appellant would be represented by her brother, that she would not be called as a witness, and that the scope of documentary material had been clarified by the date of the hearing, we consider that the Deputy President’s decision to disallow a further adjournment of the matter for two months did not create any procedural unfairness.
We also disagree that there was any procedural unfairness manifested in that the Appellant was not able to personally challenge the evidence of the Respondent’s witnesses on the day of the hearing, particularly that of Mr Seneka Mapa, as contended in Ground 6. Mr Mapa filed a witness statement on 31 October 2022, which was available to the Appellant and her representative. As such, the Appellant had over a month to put on submissions to challenge any factual inaccuracies within that statement and did so. Moreover, Mr Mapa was cross-examined by the Appellant’s representative at the hearing. As mentioned above, the Appellant’s challenges to Mr Mapa’s evidence were considered comprehensively by the Deputy President at [33] – [42] of the Decision and factored into his assessment of s.387(a). Therefore, we reject Grounds 1 & 6.
Ground 2
Ground 2 does not disclose any arguable case of appealable error. We consider that the Deputy President was correct in allowing the Respondent to be legally represented. We note that the Appellant’s representative affirmed to the Deputy President in a Mention prior to the hearing that the Appellant “ha[s] no concerns in that regard whatsoever” on the question of legal representation.[15] However, even beyond that, we agree with the Deputy President that the matter exhibits sufficient factual complexity such that legal representation for the Respondent would have enabled it to be dealt with more efficiently,[16] pursuant to s.596(2)(a) of the Act. We therefore reject Ground 2.
Ground 3
We also do not consider that Ground 3 discloses any arguable case of appealable error. While it may be true that Ms Blumberg played an important role in the dismissal process of the Appellant, as the Appellant submits, we agree with the Deputy President’s decision to not give an order for production. The Appellant was unable to justify why Ms Blumberg should have been called as a witness and could not answer the Deputy President clearly regarding what evidence Ms Blumberg was expected to give.[17]
It should also be noted that opportunities were given to the Appellant to obtain a witness statement from Ms Blumberg by 29 November 2022, or in the alternative, produce an outline of evidence Ms Blumberg would be expected to give and a description of the attempts that had been made to obtain a witness statement. The Appellant did not lodge either document with the Commission by the date of the hearing. Accordingly, this ground is rejected.
Ground 4
The Appellant asserts under Ground 4 that the Deputy President did not take into account the fact that the Appellant had submitted extensive medical evidence to the Respondent prior to her dismissal about why she could not comply with the vaccination mandate, and therefore that he erred in finding that the Appellant’s dismissal was not harsh, unjust or unreasonable. The Appellant cites the cases of Bradley Dean v Rex Aviation[18] and Robyn Pskiet v Nocelle Foods[19] as support for the above contention. While we agree with the Appellant that the above two cases are examples of where, despite there being a valid reason for dismissal, a dismissal could still be found to be unreasonable when taking personal circumstances into account, we consider that the facts in the current matter can be distinguished.
In Bradley Dean v Rex Aviation, the applicant was dismissed as he did not comply with a workplace vaccination mandate but was strongly committed to receiving the Novavax vaccine, which he eventually obtained around 3 months after his dismissal. The applicant in that matter was only given six weeks to respond to the workplace mandate prior to dismissal. Similarly, in Robyn Pskiet v Nocelle Foods, the dismissal of the applicant was found to be unreasonable since it was more than a distinct possibility that she would have received the Novavax vaccine when it became available in Australia but was dismissed before it did. Both applicants were long-serving employees, much like the Appellant in the current matter.
However, the Respondent in the current matter provided the Appellant with more than 7 months’ time to comply with their mandate, at various points implementing leave regimes so as to give the Appellant further opportunities for bringing herself into compliance. We note that in February 2022, almost five months prior to her dismissal, the Appellant signed a document for the Respondent committing to obtaining the Novavax vaccine, but she had not received it by the date of her dismissal. We consider that, unlike the cases the Appellant cites, the Respondent did afford greater latitude to the Appellant given her long-standing employment with them, including an additional week of special paid leave when all her other leave requirements were exhausted, but she was still unable to comply with the vaccination mandate despite these additional allowances.
In the Decision, the Deputy President explicitly considered the fact that the Appellant was a long-standing employee and found that this was in the Appellant’s favour.[20] He addressed the fact that the Appellant was considering the Novavax vaccine and was seeking further medical advice.[21] However, he acknowledged that the Appellant was given an opportunity to respond to the reason for dismissal despite the circumstances,[22] and given sufficient warning of her dismissal that would be expected for an employee of her lengthy stature –[23] assessments with which we agree. We therefore consider that the Deputy President did not err in finding that the Appellant’s dismissal was not harsh, unjust or unreasonable and accordingly, we reject Ground 4.
Ground 5
The Appellant asserts under Ground 5 that the Deputy President erred in finding that inherent requirements of the Appellant’s job were to visit the Respondent’s offices nationwide and provide in-person support and training. We note that the task of defining the inherent requirements of the Appellant’s job in the current matter was a critical question, since the Respondent was under an obligation to implement a vaccination mandate in line with the Victorian Government’s Order 10. However, we consider that it was reasonably open on the evidence for the Deputy President to make such findings.
The Appellant further submits that the Deputy President did not adequately take into account the fact that the Appellant had not travelled elsewhere (other than to the Kooyong site) since 2014, and that the practice of taking walk-in support requests was undocumented and thoroughly discouraged by management.[24] We disagree. We consider that the Deputy President explicitly considered these factual challenges by the Appellant, and we have already discussed this earlier at [9]. Finally, the Appellant submits that the Deputy President misinterpreted the Appellant’s job position description from 2019, since that document only states that the Appellant is required to have “experience” in providing in-person support services, rather than actually provide them.[25] We disagree and consider this an unjustified and strained reading of the job position description. Regardless, even if the Deputy President was incorrect, this does not change the outcome of the decision since Deputy President also found numerous other in-person inherent requirements other than providing in-person support services, as noted above at [14]. As Ground 5 discloses no arguable case of appealable error, we reject it.
Conclusion
The issue for this Full Bench is whether, in all the circumstances and having regard to the matters set out above in the context of the necessary principles, an appeal should be granted. We are satisfied that the Deputy President has not erred in the application of the principles to the facts and evidence as presented to him. No error of fact is disclosed – much less a significant error – that would justify permission to appeal being granted. Nor has the Deputy President’s conduct of the proceedings resulted in procedural unfairness to the Appellant.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required;
· the appeal raises issues of importance and/or general application;
· the Decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Matter determined on the papers.
Final written submissions:
5 March 2023, for the Appellant.
[1] [2023] FWC 47 (‘the Decision’).
[2] PR749451.
[3] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ. (Coal and Allied Operations Pty Ltd).
[4] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[6] Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[7] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[8] Wan v AIRC (2001) 116 FCR 481 at [30].
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[10] Decision at [6].
[11] Transcript at PN28-9 (14 October 2022).
[12] Transcript at PN175 (1 December 2022).
[13] Transcript at PN52 (14 October 2022).
[14] Ibid at PN54.
[15] Ibid at PN93.
[16] Ibid at PN94.
[17] Transcript at PN134-72 (1 December 2022).
[18] [2022] FWC 1448.
[19] [2022] FWC 1534.
[20] Decision at [97].
[21] Ibid at [51].
[22] Ibid at [90].
[23] Ibid at [94].
[24] Appellant’s Form F7 Attachment – Grounds For the Appeal at [100].
[25] Ibid at [145]-[149].
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